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How will Utah lawmakers tackle police reform in 2021?

Lawmakers expect to discuss use of force, accountability, but don’t expect ‘sweeping’ change, senator says

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Salt Lake Police officer Metui Tautuaa is the only officer to take a knee as a crowd of protesters yell and plead for officers to take a knee with them, in solidarity against police brutality and racism, after a Party for Socialism and Liberation rally moved to the Salt Lake City Public Safety Building on Monday, June 1, 2020.

Kristin Murphy, Deseret News

SALT LAKE CITY — It was a summer of unrest unlike anything Utah or the nation had ever experienced, and it all started because of the killing of George Floyd in Minnesota last May.

Chants of “I can’t breathe” and “no justice, no peace” sounded throughout the streets of Salt Lake City. Protesters spilled red paint meant to represent blood on the road and stairs leading up to the Salt Lake County District Attorney office building. The protests stretched on for days, weeks, months.

But eventually they tapered off.

Now, Utah lawmakers are headed into the 2021 legislative session next week, and so many law enforcement bills are filed or in the works that they’re difficult to count. Estimates range from over 20 to maybe even over 80 possible bills dealing with some type of police reform, with a good chance that many are duplicates.

What’s certain is that police reform legislation will be among the top issues debated on Utah’s Capitol Hill this year. What isn’t certain is what kind of bills will survive the process — or even see the light of day, depending on whether legislative leadership will allow them to get a hearing.

Democratic lawmakers say there appears to be bipartisan support for at least some reforms, but sweeping changes to use-of-force laws or overall reforms are not expected.

“I’m hopeful,” said Rep. Angela Romero, who is sponsoring at least two bills related to police reform and has been involved in a group of lawmakers who began focusing on the issue in the early days of the protests.

“I’m hopeful that we will definitely be able to pass some legislation, but at the same time some of these issues are so systematic they’re embedded in our institutions, and it’s going to take years for us to create change,” the Salt Lake City Democrat said. “So I definitely see some legislation coming before us, but I also think we have a long road ahead.”

No sweeping changes

Sen. Todd Weiler, chairman of the Senate Judiciary, Law Enforcement and Criminal Justice Committee, said many of the bills that have come as a result of last summer’s protests were “kind of knee-jerk reactions.” But now as “some of that anxiety has settled down,” there will still be political will to pass some legislation, but no sweeping changes.

“Had the general session started in August, I think it would be a different atmosphere than we’re facing now,” the Woods Cross Republican said. “I do think there will probably be some bills that get traction and passed, but I don’t think we’re going to radically change the law in the state of Utah.”

Weiler said as a legislator, “I am more persuaded by the NAACP and their approach than I have been by, let’s just say, the newer organizations,” pointing out that NAACP has been “around a lot longer than Black Lives Matter” making recommendations to the Utah Legislature. Before passing a ban on police chokeholds in last year’s special session, Weiler said, lawmakers had worked on the issue of police reform for years.

“I’m not saying there’s no room for improvement because I’m sure there is,” he said. “But I’m not expecting dramatic, sweeping changes this year.”

Lex Scott, founder of Black Lives Matter Utah, said she wasn’t surprised to see the summer fervor simmer down.

“I’ve been here seven years, and I’ve seen the crowds come out for every big shooting, and then they go right back in the house,” she said. “As soon as I saw them come out, I was kind of counting the days until they left because a majority of them were bandwagon, trendy people anyway.”

More de-escalation training, allowing cities to form civilian oversight boards, requiring swift release of body camera footage, more guardrails around use of force are among the items on her legislative wish list.

Even though Scott feels there is still more political will from Utah lawmakers this year to enact change, she’s still worried they won’t do enough.

“I’m as worried as anyone could possibly be,” she said. “However, I want legislators to also be worried. Because if they don’t pass real, substantive reforms, they’re going to have to keep going through the cycle of unrest over and over and over again.”

Scott added: “We’re peaceful over here. But I’m just saying, what will it take for people to actually give us police reform? That’s the question.”

The bills looking to put more restrictions around police use of force are among those that likely will be facing opposition, according to interviews with lawmakers.

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Lex Scott, founder of Black Lives Matter Utah, leads a chant as the organization holds a protest outside the Cottonwood Heights police headquarters on Friday, Aug. 7, 2020.

Spenser Heaps, Deseret News

Bills with bipartisan support

Weiler said among the bills with the best chance for bipartisan support in the GOP-controlled Legislature are those focused on more de-escalation training requirements. There also appears to be early bipartisan support to put in place data reporting requirements for use-of-force incidents.

Romero is sponsoring both of those bills.

HB162 would require 16 of the 40 hours of training police officers are required to complete each year to be focused on de-escalation and working with individuals who are experiencing a mental health crisis, Romero said.

The other, HB84, would require local law enforcement agencies to collect and submit data on use-of-force-incidents to the Bureau of Criminal Identification, a state and federal database.

Sen. Jake Anderegg, R-Lehi, said he’ll be signing on to HB84, calling current data collection on use-of-force incidents “woefully insufficient.”

Some police agencies, like Salt Lake City’s, can easily collect that type of data from a more automated system, Anderegg said. But can other cities and towns across the state?

“It’s like stone tablets and chisels,” he said, making it difficult to compile uniform data that can inform future policy decisions on police use of force. “I thought, ‘Are we living in the Stone Age, here?’”

“Good information drives good policymaking,” Anderegg said, adding that he’s “absolutely hellbent on getting us into the 21st century” on that issue.

Bills on shakier ground

Another bill that’s likely to see some pushback is one being run by House Minority Assistant Whip Jennifer Dailey-Provost, D-Salt Lake City. It’s not public yet, but she said it would change the justification in statute for a police officer to use lethal force to include both of the words “reasonable and necessary” and not just “reasonable.”

“If lethal use of force is used, we need to make sure it really was justified,’ Dailey-Provost said, though she added that she has spoken with police officers who are “nervous” about including the word “necessary,” which would narrow the law for police actions.

One example, she said, is if a police officer came across somebody who “looks threatening, acts threatening and points a firearm at a police officer, so it’s perfectly reasonable for a police officer to fire. But it’s later discovered the weapon was a plastic toy. Then it’s hard to argue that the lethal force was necessary.”

“I understand that,” Dailey-Provost said. “But we absolutely have to do something to inch toward the middle ground on addressing excessive use of force.”

Rep. Kera Birkeland, R-Morgan, is also running a use-of-force bill: HB154. It would require an officer who watches other officers violating procedures to intervene and then report it. It also would change state code to specify a police officer is permitted to use deadly force when an officer is facing “imminent” threat of death or serious bodily injury.

Birkeland’s bill would also require an officer to, if feasible, identify himself or herself as a police office and “give clear verbal warning of his or her intent to use a firearm or other physical force,” as well as attempt to de-escalate the situation before resorting to deadly force. Additionally, it would specify use of deadly force is not justified if another officer gave conflicting commands to the person who was killed, and if the person is killed due to “criminally negligent conduct of the officer,” including if that person is not the individual the officer wanted to arrest.

Birkeland also wants to tackle transparency with her bill, including a provision that all investigations involving an officer’s misconduct or use of force be completed within 90 days of the incident, and all investigative reports and their findings be published within five weekdays of completion.

Romero said bills changing the use-of-force statute will likely be a “little more difficult,” with more concerns from law enforcement officials.

Ian Adams, executive director of Utah’s Fraternal Order of Police, said “reform is pretty constant” in law enforcement and is “nothing to be afraid of.” But he cautioned lawmakers against legislation that could “further harm individual officers” or box them in while responding to difficult and dynamic situations.

Use-of-force law, Adams said, is “constitutionally defined by the Supreme Court as far as reasonableness,” so changes to that law could be tricky. But he said he’s open to working with lawmakers, knowing that the devils are in the details.

“Here’s the problem,” Adams said. “We don’t know how many times police used use of force last year. So how are we going to build a legislative edifice around something we don’t know the number of to reduce it?”

That’s why Adams said he’s a big proponent of data reporting requirements like those being sought in Romero’s bill.

Anderegg said he has another bill he “really, really” wants to run, but he warned “it’s going to be really difficult.”

If he had his way, the bill would put in place a system that would flag to a police officer if they were dispatched on a call that involved a person with a mental health illness.

“If you’re a hammer, you tend to look at everything like a nail,” he said, but maybe that would change if police officers were immediately aware that they were entering a situation with an individual with sensitive needs.

But that bill will likely run into issues with concerns about health privacy laws, something he’s already clashing on with the Utah Department of Health, Anderegg said. However, he argues that if that type of information can be shared with other institutions, why not also police departments?

“My argument is why can’t we figure out the same type of process so our law enforcement officers are armed with the best intel there is? It would modify their approach,” he said.

Bills, bills, bills

The following are bills relating to police reform or protests that have been filed thus far. They won’t be the last. Lawmakers expect many more bills — and versions of those bills — to be drafted and unveiled throughout the session.

  • SB13, sponsored by Sen. Jani Iwamoto, D-Holladay, would aim to ensure a police officer can’t skirt an internal investigation simply by working at a new police department.
  • HB74, sponsored by Rep. Mark Wheatley, D-Salt Lake City, would change state code to allow cities to create police oversight boards under certain conditions and allow for the creation of a board with independent authority over the chief of police.
  • HB133, also sponsored by Wheatley, would mandate that police body camera footage of an incident that results in death or bodily injury or when an officer fired a weapon be released within 10 days after the incident. It would also require the release of the footage that is the subject of a complaint or court case that alleges an officer used excessive force within 10 days after receiving notice of the filing of the complaint or court case.
  • HB62, sponsored by Rep. Andrew Stoddard, D-Sandy, would add additional grounds for suspending or revoking the certification of a police officer, including “conduct involving dishonesty or deception or violation of employer’s use-of-force policy.”
  • SB38, sponsored by Sen. Daniel Thatcher, R-West Valley City, would require annual certification of K-9 officers and their handlers. The bill comes after Salt Lake City Mayor Erin Mendenhall suspended then censured the Salt Lake Police Department’s K-9 program after a review found 18 questionable dog bites dating back to 2018. Mendenhall called the findings a “pattern of abuse.”
  • HB59, also sponsored by Stoddard, would prevent officers from downloading private images to a shared device and sharing them with anyone not involved in the investigation. The bill comes after a University of Utah police officer saved explicit photos of slain student Lauren McCluskey on his personal cellphone and boasted about it to a fellow officer.
  • HB22 would require the chief medical examiner to investigate deaths resulting directly from the actions of a law enforcement officer and would prohibit providing false information to the chief medical examiner. Bill sponsor Rep. Merrill Nelson, R-Grantsville, said he decided to run the bill to close a “gap” in state statute that doesn’t specify a “neutral third party” investigate a death of a person that is being taken into custody by police.

Nelson said he decided to run the bill after the George Floyd killing led to debate around his cause of death. “I wanted to be sure we don’t have these problems here in Utah,” he said. “I don’t think we do, but our statute needed some clarification.”

  • Nelson said he’s also looking to run a bill, which hasn’t yet been made public, that would allow prosecutors to refer a case on whether a police officer’s use of deadly force was legally justified to a grand jury. Under current law, a prosecutor must make that determination, Nelson said, which can be “subject to political pressures” because district attorneys are elected officials.

The aim of allowing the case to go to a grand jury is to restore “public confidence in the public justice system,” Nelson said, “knowing that it was not politically motivated or influenced. The family of victims of deadly force may have more confidence in that determination by a panel of citizens as opposed to an elected prosecutor.”

  • HB66, sponsored by Rep. Casey Snider, R-Paradise, would declare the sheriff has the “primary law enforcement authority when a sheriff and a municipal law enforcement agency disagree” on response to a riot, civil disturbance or breach of the peace.
  • Another protest bill, brought forward in the interim by Rep. Jon Hawkins, R-Pleasant Grove, got heat in a committee meeting last fall. It would make the obstruction of traffic during a riot a third-degree felony and absolve drivers from criminal liability for injuries or death if they ran protesters over while trying to flee from a riot.

However, Weiler said he believes “that bill is dead” and won’t be pursued further.

Correction: An earlier version misidentified Rep. Angela Romero as a member of House leadership. The title now belongs to House Minority Assistant Whip Jennifer Dailey-Provost.